HALL v. NATIONSTAR MORTGAGE, LLC et al

Filing 18

MEMORANDUM AND ORDER THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/6/15. 7/7/15 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VIRGINIA B. HALL,
Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, et al.,
Defendants.

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CIVIL ACTION
NO. 13-6563
CIVIL ACTION
NO. 14-2257

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 6, 2015

Plaintiff Virginia B. Hall (“Plaintiff”) brings two
actions against Nationstar Mortgage, LLC, Champion Mortgage
Company, Champion Mortgage, and unnamed representatives thereof
(“Defendants”). In the first action (No. 13-6563), Plaintiff
alleges that Defendants violated the Fair Debt Collection
Practices Act (“FDCPA”) through misleading statements in a
letter involving a foreclosure notice. In the second action (No.
14-2257), Plaintiff alleges that Defendants violated the FDCPA
by directly contacting her with respect to a debt despite
knowing that she was represented by counsel. Defendants have
moved for summary judgment on both actions. For the reasons that

follow, the Court will deny the motion as to both actions, but
will sua sponte dismiss the second action without prejudice.
I.

BACKGROUND
In 2009, Charles Pirrone executed a reverse mortgage

loan (“the Loan”) for his Philadelphia home (“the Property”).
See Open-End Mortgage, Pl.’s Resp. Ex. A, ECF No. 34-4.1 Less
than two years later, in March 2011, Pirrone passed away and his
daughter, Plaintiff, became executrix of his estate (“the
Estate”). Hall Dep. 18:9-20:10, Aug. 12, 2014, Pl.’s Resp. Ex.
B, ECF No. 34-5 [hereinafter Hall Dep.]. The Property was the
primary asset of the Estate, and Pirrone’s will left it entirely
to Plaintiff. Hall Dep. 27:5-28:10.
In April 2013, Defendants, doing business as Champion
Mortgage, sent Plaintiff a Notice of Intention to Foreclose
Mortgage. See Pl.’s Resp. Ex. C, ECF No. 34-6 [hereinafter Act 6
Notice]. Such a letter – called an “Act 6 notice” – is a
mandatory prerequisite to the initiation of the foreclosure of a
residential mortgage in Pennsylvania. 41 P.S. § 403. The Act 6
Notice informed Plaintiff that the Property was in default due
to the death of Pirrone, and warned her that if she did not
timely cure the default, her mortgaged could be foreclosed. Act

1

Unless otherwise noted, all references to docket
numbers are from case number 13-6563, the Class Action.
2

6 Notice at 1-2. If that occurred, the Act 6 Notice said, there
would be a Sheriff’s sale terminating Plaintiff’s ownership of
the Property:
If you have not cured the default within the
thirty day period, and foreclosure proceedings have
begun, you will still have the right to cure the
default and prevent the sale at any time up to one
hour before the Sheriff’s foreclosure sale. You may do
so by paying the total amount of the unpaid monthly
payments plus any late charges, charges then due, as
well as the reasonable attorney’s fees and costs
connected with the foreclosure sale (and perform any
other
requirements
under
the
mortgage).
It
is
estimated that the earliest date that such Sheriff’s
Sale could be held would be approximately THREE (3)
MONTHS FROM THE DATE OF THIS LETTER. A notice of the
date of Sheriff’s Sale will be sent to you before the
sale.
Id. at 2 (emphasis in original). The Act 6 Notice also said,
“FEDERAL LAW REQUIRES US TO ADVISE YOU THAT THIS FIRM IS A DEBT
COLLECTOR AND THAT THIS IS AN ATTEMPT TO COLLECT A DEBT.” Id.
After receiving the Act 6 Notice, Plaintiff was concerned about
the possibility of foreclosure, so she took the Notice to
Freedman & Grinshpun, the attorneys who were representing the
Estate. Hall Dep. 18:25-19:13, 47:9-15, 55:17-56:14.
On June 13, 2013, Defendants filed an action of
mortgage foreclosure against Plaintiff in the Court of Common
Pleas of Philadelphia County (“Foreclosure Litigation”). Action
of Mortgage Foreclosure, Defs.’ Mot. Summ. J. Ex. H, ECF No. 313. Freedman & Grinshpun is defending Plaintiff in the
Foreclosure Litigation. Hall Dep. 35:5-13.
3

Plaintiff filed a counseled Complaint (“Class
Action”) – civil action no. 13-6563 – on November 12, 2013. ECF
No. 1. She brought the suit as a class action, alleging two
claims: (1) violations of the Fair Debt Collection Practices Act
(“FDCPA”) and (2) violations of Pennsylvania’s Unfair Trade
Practices and Consumer Protection Law. Plaintiff later orally
withdrew the latter claim, leaving only the FDCPA claim. See
Hr’g Tr. 3:15-4:2, 49:14-19, Apr. 2, 2014, ECF No. 24
[hereinafter Hr’g Tr.].
While the Class Action was pending, on February 6,
2014, and March 31, 2014, Defendants sent two letters to the
Estate, notifying the Estate of the default of the Loan and
providing options for curing the default. Defs.’ Mot. Summ. J.
Exs. I and J, ECF No. 31-3.
Defendants filed a motion to dismiss the Class Action
(ECF No. 13), which the Court denied after a hearing. See Hr’g
Tr. 49:3-9; ECF No. 22. The Court also indicated that Defendants
could file a motion for summary judgment as to Plaintiff’s
claims, and if that motion was denied, the parties would then
proceed to class discovery. Hr’g Tr. 47:21-48:23. Thereafter,
Plaintiff also filed a related case (“Individual Action”) –
civil action no. 14-2257 – based on Defendants’ letters to the
Estate during the pendency of the Class Action. Her Complaint in

4

the Individual Action alleges one claim of violations of the
FDCPA.
On September 2, 2014, Defendants moved for summary
judgment on both cases. Plaintiff responded on October 15, 2014,
and Defendants filed a reply brief on October 30, 2014.2 The
motion is now ripe for disposition.
II.

LEGAL STANDARD
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
2

The parties addressed both cases in their filings; the
Court will do the same in this opinion.
5

inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250 (internal quotation
marks omitted).
III. DISCUSSION
A.

Class Action (No. 13-6563)
Plaintiff claims that the Act 6 Notice was false,

deceptive, or misleading under the FDCPA because it stated: “It
is estimated that the earliest date that such Sheriff’s Sale
could be held would be approximately THREE (3) MONTHS FROM THE
DATE OF THIS LETTER.” Act 6 Notice. According to Plaintiff,
because of the particular practices of the Philadelphia
Sheriff’s Office, Sheriff’s sales in Philadelphia County never
occur more than 131 days – or nearly 4.5 months – after an Act 6
notice is sent.3 Am. Compl. ¶ 36, ECF No. 12. Therefore,
Plaintiff says, the Act 6 Notice “generated a false sense of
3

Plaintiff’s purported class in the Class Action
extends beyond Philadelphia County to Bucks, Chester, Delaware,
and Montgomery Counties. Am. Compl. ¶ 38.
6

urgency and confusion,” and thus violated the FDCPA. Id. at ¶
50.
Defendants argue that their three-month estimate
cannot be misleading under the FDCPA because the estimate was an
accurate statement of Pennsylvania law, Defs.’ Mem. Law 12-18,
ECF No. 31-2, and the least sophisticated debtor could not be
misled by the Act 6 Notice, id. at 21-24.
1.

Legal Standard

“The FDCPA provides a remedy for consumers who have
been subjected to abusive, deceptive or unfair debt collection
practices by debt collectors.” Piper v. Portnoff Law Assocs.,
Ltd., 396 F.3d 227, 232 (3d Cir. 2005). One of the FDCPA’s basic
tenets “is that all consumers, even those who have mismanaged
their financial affairs resulting in default on their debt,
deserve the right to be treated in a reasonable and civil
manner.” F.T.C. v. Check Investors, Inc., 502 F.3d 159, 165 (3d
Cir. 2007) (quoting Bass v. Stolper, Koritzinsky, Brewster &
Neider, S.C., 111 F.3d 1322, 1324 (7th Cir. 1997)) (internal
quotation marks omitted). As such, the statute prohibits a debt
collector from using certain collection methods to collect a
debt from a consumer. Id. at 166. The prohibited methods
include, among other things, “any false, deceptive, or
misleading representation.” 15 U.S.C. § 1692e.

7

To determine whether or not a defendant’s
communications were false, deceptive, or misleading, courts must
apply the “least sophisticated debtor” standard, which is
intended to ensure “that the FDCPA protects all consumers, the
gullible as well as the shrewd.” Wilson v. Quadramed Corp., 225
F.3d 350, 354 (3d Cir. 2000) (quoting United States v. Nat’l
Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996)). Under this
standard, “any lender-debtor communications potentially giving
rise to claims under the FDCPA . . . should be analyzed from the
perspective of the least sophisticated debtor,” because “a
communication that would not deceive or mislead a reasonable
debtor might still deceive or mislead the least sophisticated
debtor.” Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir.
2006). However, the least sophisticated debtor standard still
“prevents liability for bizarre or idiosyncratic interpretations
of collection notices by preserving a quotient of reasonableness
and presuming a basic level of understanding and willingness to
read with care.” Wilson, 225 F.3d at 354-55 (quoting Nat’l Fin.
Servs., 98 F.3d at 136) (internal quotation marks omitted).
Ultimately, “[a] debt collection letter is deceptive where ‘it
can be reasonably read to have two or more different meanings,
one of which is inaccurate.’” Brown, 464 F.3d at 455 (quoting
Wilson, 225 F.3d at 354).

8

2.

Analysis

Defendants reached their three-month estimate by
totaling the following requirements of Pennsylvania law:
(1)

A residential mortgage lender must notify the
residential mortgage debtor of its intention to
initiate a foreclosure action at least thirty
days before commencing such an action. 41 P.S.
§ 403(a).

(2)

The lender may then file a mortgage foreclosure
complaint, and the debtor has twenty days to file
responsive pleadings. Pa. R. Civ. P. 1026(a).4

(3)

If the debtor does not answer the complaint, the
lender must send the debtor a notice of intention to
seek a default judgment, wait ten days, then file
a praecipe for default judgment. Pa. R. Civ. P.
237.1(a)(2).

(4)

After judgment is entered, the lender must obtain a
writ of execution directing the Sheriff to proceed to
a sale. Pa. R. Civ. P. 3102. The Sheriff must then
provide notice in several ways, including by posting
handbills “in the sheriff’s office and upon the
property at least thirty days before the sale.” Pa. R.
Civ. P. 3129.2(b) (emphasis added).

See Defs.’ Mem. Law 16-17. The minimum time in which these
requirements could be completed is ninety days – hence
Defendants’ estimate of three months.
Plaintiff does not contest this conclusion, nor do
Defendants contest Plaintiff’s conclusion that in Philadelphia
County, based on the practices of the Sheriff’s Office, a
4

“Except as otherwise provided[,] . . . the procedure
in [an action to foreclose a mortgage] shall be in accordance
with the rules relating to civil action.” Pa. R. Civ. P.
1141(b).
9

Sheriff’s sale is unlikely to occur within 131 days of an Act 6
notice, rather than within three months (or 90 days). However,
Plaintiff does insist that it is not merely unlikely for a sale
to occur within 131 days of an Act 6 notice, but in fact, that
one “can never take place” within less time due to “various nonwaivable statutory and regulatory deadlines.” Pl.’s Resp. 4, ECF
No. 34. In support of this assertion, Plaintiff has produced a
one-page document entitled “Mortgage Sale Last Filing Dates
2013.” Pl.’s Resp. Ex. G, ECF No. 34-10. There are two columns:
“Sale Date” and “Last Filing Date.” From this document, it
appears that the Philadelphia County Sheriff’s Office conducts
Sheriff’s sales on one day per month, and each date has a
corresponding deadline for paperwork. For example, in 2013, in
order to hold a Sheriff’s sale on December 3, all paperwork
needed to be filed by September 16. This is a delay of 78 days –
48 more than the 30 required by Pennsylvania law, as discussed
above.
In other words, the “statutory and regulatory
deadlines” to which Plaintiff refers are the same deadlines, as
discussed above, that Defendant used to create the three-month
estimate. Plaintiff simply points out that the Sheriff’s Office
waits for an additional period of time – in 2013, it was at
least 41 additional days above the legal minimum – to hold a
Sheriff’s sale. Accordingly, Plaintiff’s statement that the
10

three-month estimate was “a month earlier than what . . . was
legally permissible,” Pl.’s Resp. 23, is incorrect. It would be
legally permissible for the Sheriff’s Office to hold a sale
after 90 days, were all necessary legal steps taken immediately.
In actual practice, however, the Sheriff’s Office does not hold
sales as quickly as it is legally permitted to do – at least not
in 2013, when Plaintiff received her Act 6 Notice.
To put it another way, it is indisputable that
Defendants’ three-month estimate is correct in the literal sense
under Pennsylvania law; the Sheriff’s Office is allowed to hold
sales within 90 days. But it is unlikely – at best – to do so
under its existing practices. Under these circumstances, there
is no genuine dispute of material fact, and the sole question is
whether a statement that is technically accurate, but factually
unlikely based on the practices of the Sheriff’s Office, can
mislead the least sophisticated debtor.
Plaintiff relies on Brown, in which the debt collector
sent the debtor a letter demanding payment of a delinquent
credit card balance. 464 F.3d at 451-52. The letter stated, in
relevant part, “Refusal to cooperate could result in a legal
suit being filed for collection of the account. You now have
five (5) days to make arrangements for payment of this account.
Failure on your part to cooperate could result in our forwarding
this account to our attorney with directions to continue
11

collection efforts.” Id. The debtor alleged in her suit against
the debt collector that these statements were misleading,
because while the debt collector could pursue legal action
against the debtor, it never actually intended to. Id. at 452.
The Third Circuit agreed that such a statement could be
deceptive, determining that “the least sophisticated debtor
might get the impression that litigation or referral to a . . .
lawyer would be imminent if he or she did not respond within
five days.” Id. at 455. Therefore, the court concluded, “it
would be deceptive under the FDCPA for [the debt collector] to
assert that it could take an action that it had no intention of
taking and has never or very rarely taken before.” Id.
Plaintiff urges that the result of Brown requires a
decision in her favor as well. However, the cases are not
precisely similar. In Brown, which was still at the motion to
dismiss stage, the case revolved around the factual question of
whether the debt collector intended to take the action it
asserted it could take – because the answer to that question
determined whether its statement was misleading. That is,
assuming that the plaintiff’s factual allegations were true, the
least sophisticated debtor could have been misled by the Brown
letter because the debt collector invented an imminent, illusory
deadline in order to reinforce the impression that the
threatened legal action was a real possibility. Here, in
12

contrast, there is no evidence in the record that Defendants did
not intend to pursue a Sheriff’s sale as soon as it was legally
permissible – provided, of course, that the Sheriff’s Office
scheduled a sale within that timeline.5
However, as in Brown, Defendants did assert the
possibility of something that simply was not going to occur,
even if it could technically occur. The least sophisticated
debtor might reasonably read the Act 6 Notice to mean that a
Sheriff’s sale could occur within three months. Because that
would be untrue as a factual matter – a Sheriff’s sale was not
going to occur within three months, according to the Sheriff’s
Office 2013 schedule – the letter could “be reasonably read to
have two or more different meanings, one of which is
inaccurate.” Brown, 464 F.3d at 455 (quoting Wilson, 225 F.3d at

5

For this reason, this case is also distinguishable
from cases where a debt collector threatens that action will be
taken within a certain time period, even though legal
restrictions actually preclude the action from being taken
during that time period. It is clear that such communication
violates the FDCPA. 15 U.S.C. § 1692e(5) (a “threat to take any
action that cannot legally be taken or that is not intended to
be taken” is a violation). See also, e.g., Graziano v. Harrison,
950 F.2d 107, 111 (3d Cir. 1991) (debt collector violated §
1692e by threatening to sue within ten days when he could not
legally sue within thirty); Crossley v. Lieberman, 868 F.2d 566,
571 (3d Cir. 1989) (debt collector violated § 1692e by
threatening to sue within a week when he legally could not).
Here, there are no legal limitations precluding Defendants’
three-month estimate – only practical restrictions. In other
words, Defendants did not threaten to take an action that could
not legally be taken.
13

354) (internal quotation marks omitted). Here, as in Brown, the
Federal Trade Commission’s commentary (“FTC Commentary”) to the
FDCPA is persuasive:6
The FTC Commentary observes that a debt collector “may
state that a certain action is possible, if it is true
that such action is legal and is frequently taken by
the collector or creditor with respect to similar
debts,” but where the debt collector “has reason to
know there are facts that make the action unlikely in
the particular case, a statement that the action was
possible would be misleading.” 53 Fed. Reg. 50097,
50106 (1988).
Id. While the disputed language in this case involves the
timeline for an action and not the action itself, the FTC’s
logic remains compelling. It may be technically true that a 90day timeline is legally possible, but Defendants – who could
easily request the schedule from the Sheriff’s Office in the
process of creating its estimates – had reason to know that such
a timeline was unlikely, at best. Because the least
sophisticated debtor could read from the Act 6 Notice that a
Sheriff’s sale might occur within three months, which was
inaccurate, the statement was deceptive under the FDCPA.7

6

“[T]he FTC Commentary does not have the force of law
and is ‘not entitled to deference in FDCPA cases except perhaps
to the extent [its] logic is persuasive.’” Brown, 464 F.3d at
455 (quoting Dutton v. Wolpoff & Abramson, 5 F.3d 649, 654 (3d
Cir. 1993)). In the context of this case, it is persuasive.
7

On June 4, 2015, Defendants submitted a letter to the
Court, ECF No. 36, highlighting the recent decision in Burton v.
Nationstar Mortgage LLC, No. 14-5059, 2015 WL 1636956 (E.D. Pa.
Apr. 13, 2015). The Burton court held that in order “[f]or a
14

Defendants argue that the Act 6 Notice cannot be
misleading because it fully complied with Pennsylvania law – the
sentence at issue comes directly from a model Act 6 Notice
created by the Pennsylvania Department of Banking and Securities
and provided in the Pennsylvania Code. 10 Pa. Code § 7.4 (“It is
estimated that the earliest date that such a Sheriff’s sale
could be held would be approximately ___.”). This model notice
is “interpreted as satisfying the requirements of section 403 of
[Act 6].” 7 P.S. § 6020-166.
Defendants are overlooking, however, that the core of
the disputed portion of the Act 6 Notice – the three-month

false statement to be actionable under Section 1692e, that false
statement must be materially false or misleading.” Id. at *6.
Defendants argue that even if their three-month estimate was
false, it would not be material, because Plaintiff stated in her
deposition that she understood the estimate to be an imprecise
statement.
Assuming for the purposes of this motion that Burton
correctly determined that a statement must be material in order
to be false, deceptive, or misleading under the FDCPA, the
statements at issue are indeed material, and so Burton does not
alter this Court’s decision. A statement is material for the
purposes of the FDCPA if it has “the ability to influence a
consumer’s decision.” O’Rourke v. Palisades Acquisition XVI,
LLC, 635 F.3d 938, 942 (7th Cir. 2011) (emphasis omitted).
Accordingly, whether a statement is material is a matter of law
for the court to determine, and the relevant question is not, as
Defendants believe, whether Plaintiff herself was influenced by
the three-month estimate, but whether a consumer could be
influenced by it. Because a consumer’s decisions could be
influenced by the belief that a Sheriff’s sale might occur at
least forty days before it could occur in reality, the threemonth estimate in this case is material.
15

estimate – does not implicate the text of the notice, but rather
is their own calculation that they placed in the blank provided
by the Pennsylvania Code. And, in fact, the very language of the
model notice suggests that the called-for estimate is intended
to encompass changing realities like the actual timelines for
Sheriff’s sales, not simply the 90-day statutory minimum. If
Pennsylvania intended an Act 6 “estimate” to mean that statutory
minimum or baseline, it could have written “90 days” into the
model notice. Instead, the model notice calls for the mortgage
company to craft its own estimate, suggesting that the debt
collector is to take into account factual realities that will
affect the likely timeline. Defendants did not do that.
In fact, Defendants’ proferred three-month statement
is not an estimate or approximation at all – it simply parrots
the minimum amount of time required under the law for a
Sheriff’s sale to occur.8 The “estimate” therefore has the
potential to further mislead the least sophisticated consumer in
an additional way. Because the Act 6 Notice estimates that the
earliest date the foreclosure sale could occur would be in
“approximately” three months, the least sophisticated debtor
could have understood that the sale might occur even earlier
8

A 130-day estimate, for example, would be a true
estimate and approximation, as the actual minimum time for a
Sheriff’s sale to occur varies a bit from month to month, but
130 days was roughly the earliest possible timeline in 2013.
16

than in three months. This is so because the word
“approximately” can be understood to mean near or close to, but
possibly shorter or longer than, the estimate provided.9 In other
words, by using “approximately” as a modifier, Defendants did
not actually designate the earliest possible date for the sale
to occur, but rather, left the least sophisticated debtor to
wonder how soon prior to three months a foreclosure sale might
occur.10
9

See Approximate Definition, Merriam-Webster,
http://www.merriam-webster.com/dictionary/approximately (last
visited July 2, 2015); JVI, Inc. v. Truckform Inc., No. 11-6218,
2012 WL 6708169, at *19 (D.N.J. Dec. 26, 2012) (noting that the
definition of “approximately” leaves room for a small range of
variance on either side of the approximation).
10

Furthermore, there is no blanket legal exception for
estimates or approximations, as Defendants suggest. In a
decision last year, the Third Circuit did suggest that a debt
collector may be able to avoid liability by making clear than an
estimate is indeed merely an estimate:
The Letter says that it sets forth “[t]he amount of
the debt as of 05/18/2010.” The only message this
conveys to the reader is the amount owed on a specific
date. Nothing says it is an estimate or in any way
suggests that it was not a precise amount. . . . If
[the debt collector] wanted to convey that the amounts
in the Letter were estimates, then it could have said
so. It did not. Instead, its language informs the
reader of the specific amounts due for specific items
as of a particular date.
McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 246
(3d Cir. 2014) (citation omitted). See also Kaymark v. Bank of
America, N.A., 783 F.3d 168, 175 (3d Cir. 2015) (noting that,
like the debt collector in McLaughlin, “[the debt collector in
Kaymark] also did not convey that the disputed fees were
estimates or imprecise amounts”). Ultimately, the question
remains whether the least sophisticated debtor could be misled
17

Accordingly, the least sophisticated debtor could
reasonably read the Act 6 Notice here to have several meanings,
at least one of which is inaccurate. Therefore, construing the
facts in the light most favorable to Plaintiff, Defendants are
not entitled to judgment as a matter of law, and the Motion for
Summary Judgment will be denied as to the Class Action.
B.

Individual Action (No. 14-2257)
Plaintiff claims that Defendants violated the FDCPA by

sending two letters to the Estate in 2014 despite knowing that
Plaintiff was represented by counsel. Compl. ¶¶ 42-46, ECF No 1.
Defendants argue that Plaintiff does not have standing to bring
this claim on behalf of the Estate because she is not a
“consumer” as defined by the FDCPA.11 Defs.’ Mot. Summ. J. 25-26.
The FDCPA prohibits a debt collector from
“communicat[ing] with a consumer in connection with the
collection of any debt” if “the debt collector knows the
consumer is represented by an attorney with respect to such debt
by the language used. In some cases, to be sure, a clear
estimate could not be misunderstood to be anything else. But
here, not only is Defendants’ 90-day “estimate” not actually an
estimate or approximation, but for the reasons discussed above,
the least sophisticated debtor could read it to have an
inaccurate meaning. Accordingly, Defendants’ use of conditional
language does not eliminate their liability.
11

Defendants also make a separate argument about one of
the letters discussed in the Complaint, but Plaintiff says that
letter is not part of her claim, so this argument is moot. Pl.’s
Resp. 32.
18

and has knowledge of, or can readily ascertain, such attorney’s
name and address . . . unless the attorney consents to direct
communication with the consumer.” 15 U.S.C. § 1692c(a), (a)(2).
A consumer is “any natural person obligated or allegedly
obligated to pay any debt,” § 1692a(3), and the definition
includes “the consumer’s spouse, parent (if the consumer is a
minor), guardian, executor, or administrator,” § 1692c(d)
(emphasis added).
Nonetheless, Defendants argue that Plaintiff is not a
consumer under § 1692c because she “has not sued Nationstar in
her capacity as executrix of the Estate but in her individual
capacity.” Defs.’ Mot. Summ. J. 25. In other words, Defendants
claim that they are entitled to judgment because Plaintiff has
failed to caption her case properly – she is suing simply in her
own name, rather than, for example, “as Executrix of the Estate
of Charles Pirrone.”
In support of this argument, Defendants cite one case
from the Eastern District of Pennsylvania, Cole v. Toll, No. 070590, 2007 WL 4105382 (E.D. Pa. Nov. 16, 2007), in which the
court found that the plaintiffs did not have standing to bring
claims on behalf of their father’s estate. Id. at *6. However,
the court reached that decision not because the plaintiffs
failed to style the caption of their case in a way that
indicated they were suing on behalf of the estate, as is
19

Defendants’ argument here, but because they had not been
appointed as executors of the estate at the time the estate
received the communications at issue. Id. at *6. Accordingly,
Cole does not stand for the proposition that a plaintiff must
technically sue as executor of an estate in order to have
standing to bring claims on behalf of the estate.12
However, Defendants’ position is supported by federal
and state civil rules. Under Federal Rule of Civil Procedure
17(b)(3), “capacity to sue is determined by the law of the state
where the court is located.” Estate of Bayliss v. Wells Fargo
Bank N.A., No. 08-2966, 2008 WL 4792446, at *2 (E.D. Pa. Oct.
30, 2008). The Pennsylvania Rules of Civil Procedure allow a
plaintiff acting in a representative capacity to sue in her own
name – if she discloses that capacity in the caption and in her
initial pleading. Pa. R. Civ. P. 2002(b)(1). Plaintiff has not
done so here, suing only in her individual capacity.
Therefore, as Virginia B. Hall, individual, rather

12

Notably, in the cases Plaintiff offers to support her
position that she has standing, while it is true that the courts
held that executors or administrators had standing to bring
claims on behalf of estates, the plaintiffs in those cases
originally filed their suits in their representative. See Wright
v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647 (6th Cir. 1994)
(plaintiff sued as “Executrix of the Estate of Gladys Finch,”
N.D. Ohio, No. 90-cv-07553-4725); Riveria v. MAB Collections,
Inc., 682 F. Supp. 174, 176 (W.D.N.Y. 1988) (plaintiff sued “as
Administratrix of the Estate of Victor Riveria”). Accordingly,
Plaintiffs’ cases do not support her position.
20

than Virginia B. Hall, executrix, Plaintiff is not a consumer
for the purposes of § 1692c, and so she has no standing to bring
this claim. Cf. Kinkade v. Estate Info. Servs., LLC, No. 114787, 2012 WL 4511397, at *4 n.2 (E.D.N.Y. Sept. 28, 2012)
(noting that plaintiff did not have standing as an individual
“stand[ing] in the shoes of a consumer” because she did not
assert her claims on behalf of her husband’s estate); Barasch v.
Estate Info. Servs., LLC, No. 07-1693, 2009 WL 2900261, at *3
(E.D.N.Y. Sept. 3, 2009) (holding that plaintiff had “disclaimed
reliance” on her ability to establish standing as executrix of
an estate because she sued only in her individual capacity, even
after a magistrate judge entered an order instructing her to
amend the case caption if she sought to sue on behalf of the
estate).
Because Plaintiff lacks standing, the Court has no
subject matter jurisdiction over this claim. Pub. Interest
Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123
F.3d 111, 117 (3d Cir. 1997). Under these circumstances, the
claim must be dismissed without prejudice, as a dismissal for
lack of subject matter jurisdiction is inherently without
prejudice. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172,
182 (3d Cir. 1999). Therefore, the Court will deny the Motion
for Summary Judgment, but will sua sponte dismiss the case
without prejudice.
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IV.

CONCLUSION
For the foregoing reasons, the Court will deny

Defendant’s Motion for Summary Judgment as to both the Class
Action and the Individual Action, but will sua sponte dismiss
the Individual Action without prejudice.

22